This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0349
Marcus Allen Brown, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed January 4, 2016
Affirmed
Peterson, Judge
Hennepin County District Court
File No. 27-CR-05-009930
Marcus A. Brown, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In his third postconviction petition, appellant seeks relief under Minn. R. Crim. P.
27.03, subd. 9, arguing that his 2005 sentence for second-degree murder must be corrected
because it was unauthorized. Because appellant’s motion is a postconviction petition and
it is time-barred under Minn. Stat. § 590.01, subd. 4 (2014), we affirm.
FACTS
Appellant Marcus Allen Brown was indicted for one count of first-degree murder
and two counts of attempted first-degree murder arising out of an incident that occurred on
August 19, 2004. On September 12, 2005, the scheduled trial date, Brown pleaded guilty
to an amended charge of second-degree intentional murder. At the same time, Brown
waived his right to a jury trial on sentencing factors and stipulated that aggravating
circumstances existed that supported an upward departure to 432 months from the
presumptive sentence of 306 months. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004). In the stipulation, Brown agreed that there were three aggravating factors:
(1) the offense involved multiple victims; (2) the offense was committed under
circumstances of greater-than-normal danger because many people were in the area; and
(3) the offense was committed with particular cruelty, because the victim was shot while
incapacitated in the presence of his father and Brown failed to seek medical treatment. The
state agreed not to proceed on another potential murder charge from 2000, unless new
evidence of that crime was discovered.
In October 2005, Brown appeared for sentencing but asked to withdraw his guilty
plea. The district court continued the sentencing hearing to December 12, 2005, when
Brown indicated that he wanted to proceed with sentencing. The district court sentenced
Brown to 432 months, based on the stipulated aggravating factors.
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Brown filed a direct appeal from his judgment of conviction, but voluntarily
dismissed the appeal in June 2006. In October 2007, Brown filed a motion to correct his
sentence with the district court, alleging Blakely violations and challenging the aggravating
factors. The district court treated the motion as a postconviction petition and denied relief,
concluding that Brown had waived his right to a Blakely hearing. Brown appealed to this
court, which affirmed the district court. Brown v. State, No. A08-0709, 2009 WL 818424
(Minn. App. Mar. 31, 2009), review denied (Minn. June 16, 2009) (Brown I). The supreme
court denied further review.
In September 2010, Brown filed a second postconviction petition, asking to
withdraw his plea based on (1) multiple Brady violations; (2) suggestive photo
identification procedures; and (3) the state’s failure to disclose that a key witness could not
identify Brown as the assailant. After an evidentiary hearing, the district court denied
Brown’s second postconviction petition, concluding that his newly discovered evidence
was unreliable and he had failed to sustain his burden of proof. Brown appealed the district
court’s decision to this court, which affirmed the district court’s denial of postconviction
relief. Brown v. State, No. A11-1503 (Minn. App. Apr. 16, 2012), review denied (Minn.
June 27, 2012) (Brown II). The supreme court denied further review.
In September 2014, Brown filed a motion to correct his sentence, alleging Blakely
violations and arguing that an upward departure cannot be based solely on a plea
agreement. The district court denied Brown’s motion, concluding that the motion was a
postconviction petition because he sought to withdraw his plea, and that it was time-barred
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under Minn. Stat. § 590.01 (2014). The district court also concluded that his claims were
without merit. This appeal followed.
DECISION
A person convicted of a crime may challenge his conviction or sentence by
postconviction petition under Minn. Stat. § 590.01, subd. 1, or his sentence by motion to
correct a sentence not authorized by law under Minn. R. Crim. P. 27.03, subd. 9. These
two remedies coexist but are subject to different conditions. Vazquez v. State, 822 N.W.2d
313, 317 (Minn. App. 2012).
A postconviction petition must be filed within two years after the later of the entry
of judgment of conviction or sentence if there is no direct appeal, or disposition of a
petitioner’s direct appeal, subject to certain exceptions. Minn. Stat. § 590.01, subd. 4. In
addition, claims that were raised or could have been raised in a prior postconviction petition
will not be considered in a subsequent petition for postconviction relief. Lussier v. State,
853 N.W.2d 149, 152 (Minn. 2014); see Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003)
(extending rule of State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) to
subsequent postconviction petitions).
A motion to correct an unauthorized sentence under Minn. R. Crim. P. 27.03, subd.
9, is not subject to the same time bar or a limitation against filing a second or subsequent
motion, and may be raised at any time. Washington v. State, 845 N.W.2d 205, 211 (Minn.
App. 2014). But rule 27.03, subdivision 9, “authorizes relief only if a party challenges a
sentence, as opposed to a conviction, and only if a party does so by asserting that a sentence
is unauthorized by law in the sense that the sentence is contrary to an applicable statute or
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other applicable law.” Id. at 213 (quotation omitted). “[A]n offender may not avoid the
requirements of the postconviction act by simply labeling a challenge as a motion to correct
a sentence under rule 27.03, subdivision 9.” Id. at 212. A petition or motion that asserts a
challenge to the conviction, seeks to withdraw a guilty plea because the facts at sentencing
were inaccurate, or is based on the district court’s selection of one of two or more
authorized sentences, may not be made in a rule 27.03 motion. Id. at 213.
The Minnesota Supreme Court recently stated that when a defendant challenges a
sentence that was imposed as part of a plea agreement, a motion for relief under rule 27.03,
subdivision 9, “impacts more than simply the sentence.” State v. Coles, 862 N.W.2d 477,
481 (Minn. 2015). In this situation, a defendant who succeeds in reducing a sentence may
retain the benefits, while escaping the consequences, of a plea negotiation. Id. Thus, the
supreme court held, a challenge to a sentence negotiated as part of a plea agreement should
be treated as a petition for postconviction relief under section 590.01, not as a motion to
correct a sentence under rule 27.03. Id. at 482.
Brown’s sentence was negotiated as part of a plea agreement. He pleaded guilty to
an amended charge of second-degree intentional murder, a reduction from first-degree
murder; the state agreed to forego charges on a second matter, unless new evidence was
discovered; he waived his right to a Blakely hearing on sentencing and stipulated to three
aggravating factors; and the parties agreed to an upward departure from the presumptive
sentence. Brown’s challenge impacts more than his sentence; the plea negotiation resulted
in real benefits to him. The district court did not err by characterizing Brown’s current
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petition as a postconviction petition under section 590.01, rather than a challenge to an
unauthorized sentence under rule 27.03.
Because Brown’s conviction became final in 2006 when he voluntarily dismissed
his direct appeal, his postconviction petition is time-barred under Minn. Stat. § 590.01,
subd. 4. Also, although Brown now argues that the aggravating factors are insufficient
under the sentencing guidelines to support an upward durational departure, this issue was
known at the time of sentencing, could have been raised in his prior postconviction
petitions, and is now barred. See Lussier, 853 N.W.2d at 152.
We need not address the merits of Brown’s postconviction petition because the
petition is time-barred, but we note that Brown waived his right to a Blakely hearing
following the procedures set forth in Minn. R. Crim. P. 26.01, subd. 1(2). See State v.
Thompson, 720 N.W.2d 820, 827 (Minn. 2006) (holding that defendant may waive his right
to a sentencing hearing). This court previously reviewed Brown’s Blakely waiver and
concluded that it was valid. Brown I, 2009 WL 818424, at *4. And at least one of the three
aggravating factors to which Brown stipulated is a permissible basis for an upward
departure from the sentencing guidelines. The Minnesota Supreme Court has “repeatedly
held that the risk to bystanders is an appropriate factor for courts to consider when
determining the seriousness of a crime.” State v. Edwards, 774 N.W.2d 596, 607 (Minn.
2009) (affirming upward departure when the assault “generated significant risk of bodily
harm to a large number of people”). Brown’s challenge to his sentence is without merit.
Affirmed.
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